Hines v. Smith

• Decision Date: 13 June 1921
• Docket Number: 2940.
• Citation: 275 F. 766
• Parties: HINES v. SMITH.
• Court: U.S. Court of Appeals — Seventh Circuit

275 F. 766

HINES v. SMITH.

No. 2940.

United States Court of Appeals, Seventh Circuit.

June 13, 1921

Petition for Rehearing Overruled August 19, 1921

George B. Gillespie, of Springfield, Ill., for plaintiff in error.

Charles C. Spencer, of Chicago, Ill., for defendant in error.

Before BAKER, EVANS, and PAGE, Circuit Judges.

EVAN A EVANS, Circuit Judge.

Affirmance depends upon the application of the Boiler Inspection Act to the facts disclosed upon the trial. Assignments of error directed to the rulings on evidence, the charge to the jury and the refusal to give requested instructions, as well as the motions for nonsuit and directed verdict, all assume, in part at least, the nonapplication of this act. This Boiler Inspection Act, as originally enacted, provided:

'Sec. 2. From and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for. ' U.S. Comp. St. Sec. 8631.

This section was amended in 1915, section 1 of the amendment reading as follows:

'Section two of the act entitled 'An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their locomotives with safe and suitable boilers and appurtenances thereto, approved February seventeenth, nineteen hundred and eleven, shall apply to and include the entire locomotive and tender and all parts and appurtenances thereof. ' U.S. Comp. St. 8639a.

It is claimed on behalf of plaintiff, and evidence supports the contention, that the automatic bell ringer was out of order and would not ring on the night of the accident, and that it had been out of order for some time. In answer thereto, defendant asserts that this act does not apply to bell ringers, and that the declaration does not charge a violation thereof. With neither position can we agree. The amendment of 1915, we think, leaves no room for doubt. Certainly a bell ringer is a 'part' or an 'appurtenance' of a 'locomotive and tender.' While a liberal construction of this statute is not necessary to justify this conclusion, it is evident that the amendment should be liberally construed and its obvious purpose effectuated. Great Northern Ry. Co. v. Donaldson, 246 U.S. 121, 38 Sup.Ct. 230, 62 L.Ed. 616, Ann. Cas. 1918C, 581.

As to the allegations set forth in the declaration we have no hesitancy in saying that count 5 charges the defendant with failure to keep its bell ringer in a 'proper condition and safe to operate in the service to which the same is put,' etc. It was unnecessary to specifically refer to the statute, inasmuch as the facts as set forth disclosed a violation of it. Grand Trunk Ry. v. Lindsay, 233 U.S. 42, 34 Sup.Ct. 581, 58 L.Ed. 838, Ann. Cas. 1914C, 168.

This being our conclusion in respect to the application of this statute, the proposed instructions, dealing with assumption of risk and contributory negligence, rejected by the court, need not be discussed. Admittedly they were properly refused if liability could be predicated upon defendant's failure to comply with the provisions of the Boiler Inspection Act.

True there were counts in the declaration to which assumption of risk and contributory negligence were defenses. But the proposed instructions, the refusal of which is assigned as error, were intended to commit the court and the jury to a repudiation of the count or counts that predicated liability upon the defective bell ringer. In fact, as the trial concluded, it became evident that defendant...